Dismissal Procedures

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This week Ivan Israelstam explains that labour law does allow an employer to dismiss an employee.  However, labour law expertise is required to ensure that the dismissal is both procedurally and substantively fair. Employers cannot simply to decide to dismiss an employee on the word of an external party - without following any internal procedures. 


This week, Ivan Israelstam explains the legally distinct reasons for dismissal: for misconduct, for poor work performance, and for operational requirements.  These are distinctly different reasons, and each has a distinctly different procedure to achieve a legally compliant dismissal. There are always exceptions in the cases, but employers are well-advised to follow the standard methods for each circumstance. 


Employers sometimes know that misconduct has definitely taken place, but the employer can’t pinpoint the actual culprit/s. The temptation is to dismiss every employee, who may have possibly been involved. This week ivan Israelstam deals with cases where this has happened.


This week Ivan Israelstam gives examples of fair discrimination. Then explains how one employer was able to successfully defend against an allegation of unfair discrimination, and another employer could not defend against a dismissal that was found to be an automatically unfair dismissal. 


This week Ivan Israelstam explains how a CCMA Arbitrator dealt with a dismissal where an employer mistakenly thought that an employee could "dismiss themselves" - and exactly what the mistake cost the employer. The employee "self-dismissal" was found to be both procedurally and substantively unfair.


This week, Ivan Istraelstam explains all of the dispute resolution bodies, and the fees and costs for an employer who is found to have unfairly dismissed an employee.


What is "whistle-blowing" , and when is it protected? This week Ivan Israelstam explains what legislation protects employees: not just the Protected Disclosures Act, but also the Labour Relations Act. Then Ivan  looks at cases, where the employee has disclosed information, and explains how the Labour Court and the Labour Appeal Court have dealt with such cases. 


What is double jeopardy, how does it arise, and what are the consequences for employers? This week Ivan Israelstam uses cases to explain what double jeopardy is, and how employers get themselves into some very expensive consequences, when dismissing employees in these circumstances.


Absent employees do constitute a problem for employers, particularly is the absence is frequently repeated. The employer is required, however, to ensure that the rights of absent employees are adhered to - before dismissing them from the company. Ivan Israelstam explains that the courts have repeatedly confirmed - an employee cannot dismiss themselves. So before taking the decision to dismiss an employee, it is necessary for employers to do everything possible to make contact with the absent employee, and to advise them of their rights to a hearing. 


Ivan Israelstam quotes from two cases of the same employer, with similar facts, but with different outcomes. Read carefully the facts that Ivan lays out to see how you would have acted in your company. 


As with all disciplines, labour law has its own terminology. What does "hiding behind the corporate veil" mean? Ivan Israelstam explains how employers sometimes seek to hide the true nature of a business practice, and how the CCMA, bargaining councils, and labour courts will respond.   


Employees may be hired on a variety of different forms of contract. This week Ivan Israelstam explains what the implications of the various contracts are, when employers are not happy with employee performance and seek to terminate the contract. 


When is a dismissal justified - and what circumstances need to be taken into account before an employer decides to dismiss an employee? Various courts have confirmed that the circumstances do matter. So it is not possible to simply state X action requires dismissal. Ivan Israelstam provides examples to illustrate how an employer should consider all the circumstances before coming to a decision.  


A disruptive employee can influence company performance, reduce productivity, and upset fellow employees to the extent that they may leave. It is important for employers not to ignore an incompatibiiy problem, and before dismissing an employee - ensure that evidence has been obtained to confirm that the employee is the source of the incompatibility. Ivan Israelstam quotes a number of cases that illustrate how employers have gone wrong in the past. 


Employers do sometimes find it difficult to prove at CCMA hearings the allegations they make against employees, who have been dismissed. One of the most common forms of evidence used in modern workplaces is camera videotape evidence.  However, this is not without problems. This week Ivan Israelstam quotes cases where the camera videotape type evidence has been challenged.  


Good practices during recruitment of new employees are critical to business success. One key issue is to obtain relevant documentary evidence of qualifications and the employer has the responsibility to ensure that the documents, such as qualifications and licences are genuine. Obtaining a history of the potential employee's past work experience may be more difficult and what will be considered relevant to the position may not always be clear.  This week Ivan Israelstam explains the complexities in establishing what is relevant. 


This week Ivan Israelstam persuades employers to protect themselves by joining an employer organisation - so that they have protection at the CCMA. Ivan expresses the opinion that labour law provides very little protection for employers and that the protection of employees has been increasing over time. He provides examples from the cases.

 

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